New York Appellate Division Allows Punitive Award Based On Post-Injury Spoliation of Evidence But Reduces Ratio to 1:1

In Gomez v. Cabatic, the New York Appellate Division, Second Department, affirmed the imposition of punitive damages in a medical malpractice case based on the defendant’s destruction of documents in an effort to avoid liability. But it ordered a remittitur of the large punitive award to $500,000—an amount equal to the compensatory damages.We first took note of this case because of the substantial remittitur. The jury awarded $500,000 in compensatory damages and $7.5 million in punitive damages, and the trial court ordered a remittitur of the punitive award to $1.2 million—a 2.4:1 ratio. The Appellate Division ordered a further remittitur to a 1:1 ratio, citing the Supreme Court’s guideposts and opining that “the amount of punitive damages awarded is excessive to the extent indicated.”

Although the court did not cite this passage of State Farm, its decision appears to follow the Supreme Court’s instruction that when compensatory damages are “substantial,” a 1:1 ratio between punitive and compensatory damages generally marks the “outermost limit of the due process guarantee.” Gomez thus can be cited alongside the many other decisions implementing this default limit.

More significant, however, is the Second Department’s ruling that punitive damages were available at all. The plaintiff did not contend that the defendant’s alleged failure to diagnose the plaintiff’s child’s diabetes was reckless or otherwise met the standard for punitive damages. Instead, she sought punitive damages based on evidence that the defendant had subsequently tampered with medical records. Acknowledging that courts are divided over the question, the court held as a matter of first impression that “where, as here, a plaintiff recovers compensatory damages for a medical professional’s malpractice, a plaintiff may also recover punitive damages for that medical professional’s act of altering or destroying medical records in an effort to evade medical malpractice liability.”

In our view, the decision to allow punitive damages based on after-the-fact destruction of evidence is misguided. Many courts have held that a claim for punitive damages must be based on the same conduct for which compensatory damages were awarded. Such a nexus between the tortious act and the punishment may be required as a matter of due process.

As the Supreme Court has explained,“[a] defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.” Indeed, as the Second Department noted in Gomez, a federal district court in New York refused to allow punitive damages in a similar case based on its view that “in New York, a plaintiff’s entitlement to punitive damages could only arise in connection with the tortious act about which the plaintiff complained.”

The Second Department reasoned that allowing punitive damages in these circumstances “will serve to deter medical professionals from engaging in such wrongful conduct, punish medical professionals who engage in such conduct, and express public condemnation of such conduct.” That deterrence rationale is a flimsy basis for abandoning a fundamental limitation on punitive liability.

Litigants who spoliate evidence may be sanctioned by the court; and in appropriate cases, evidence concerning the spoliation may be admissible to show consciousness of wrongdoing in connection with the underlying tort. But to allow a plaintiff to base a claim for punitive damages on spoliation itself invites arbitrary and unpredictable punishment for that offense.

Indeed, although it purported to apply the guideposts, the court in Gomez has effectively approved a $500,000 fine for an act that caused no injury. The punishment is disproportionate to the reprehensibility of the act punished, the harm it caused, and the sanctions normally imposed for spoliation.